In Limited Defense of Affirmative Action

Court watchers will note an odd, and unsettling development at One First St. — the Supreme Court yesterday accepted review of Fisher v. University of Texas, the first challenge to education-based affirmative action to reach the high court in a decade. As the Times notes, affirmative action in the college admissions context was never a permanent thing. Like Keats’ life, the concept was writ in water from the start — Justice O’Connor herself purported to put a twenty-five year clock on the concept, after which, with the lingering effects of de jure discrimination dimmed by passing time, colleges would be bound to admit students in a race-blind process. But the justification for affirmative action that O’Connor settled on deserves to outlive this term — a prospect that now looks doubtful — and probably her self-imposed deadline, too.

Her theory, memorialized in Grutter v. Bollinger, 539 U.S. 306 (2003), holds that race is a valid factor for colleges to consider, so long as the term serves as a proxy for diversity in student background. The notion is that different people create diversity; diversity is a valuable resource to any college; and it’s hard to spot diversity from a paper application, except with reference to race. It’s hard to deny this argument — at least, it’s hard to deny the first three steps, especially if we believe that cultural mixing is, even to conservatives, a good thing.

Indeed, if we take Justice O’Connor at her word, the problem with her argument is that it’s too right. It substantially unmoors the concept of affirmative action from the transient need to correct for past injustices, and connects it to something far more permanent: the need for colleges to train citizens, rather than just thinkers. Effectively, by mooting the historical justification, her argument renders the sunset provision an irrelevant concession compelled less by the logic of the case, than by political reality. O’Connor’s promise to end affirmative action speaks to a blemish she, in the same opinion, manages to eradicate.

The real danger, then, is that today’s Supreme Court takes her at her word, and overlooks the real value of diversity in student background. An adverse decision, ending affirmative action, will compel colleges to design a new way to select for student quality and diversity — probably by taking long looks at each individual student, demanding more substantial student submissions, and otherwise further complicating an already complicated process — or lead them take one of two easy ways out. Colleges could simply stop selecting for diversity, and grow to tolerate cultural homogeneity in higher education. Or they could find another proxy for diversity, one that might be equally offensive, but won’t invite strict legal scrutiny. Like income.

The People’s Work…

Marius is a government attorney for a jurisdiction in the New York metropolitan area. His views may coincide with, but do not represent, those of the people of the state of New York, or his former clients.